March 1, 2016: Copyright Small Claims White Paper Released by Visual Arts Associations

While there has been a great deal of discussion recently about the possibility of Congress creating a small claims process for visual arts, several visual artist groups, representing hundreds of thousands of creators, have joined forces to propose key components of potentially forthcoming small claims legislation. Collectively, the groups represent photographers, photojournalists, videographers, illustrators, graphic designers, artists, and other visual artists as well as their licensing representatives.

The white paper, which can be viewed here, advocates for the creation of a small claims tribunal within the U.S. Copyright Office. The document is a collaboration between American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA).

These organizations have identified the creation of a small claims option to be their most urgent legislative priority before Congress. They assert that the cost and burden of maintaining a lawsuit in the only existing venue for hearing copyright infringement claims — federal district courts — is prohibitive and all too often leaves visual artists no way to vindicate their rights. They see a small claims court within the Copyright Office as providing a fair, cost-effective and streamlined venue in which they can seek relief for relatively modest copyright infringement claims.

This negotiated document, which lays out the basic framework for small claims legislation, is in large part consistent with the legislative recommendations set out in the "Copyright Small Claims" report released in late 2013 by the U.S. Copyright Office. In some instances, the white paper offers alternative suggestions to those put forth by the Copyright Office.

The visual artists' organizations listed above have now distributed this legislative proposal for a copyright small claims tribunal to members of Congress, the United States Copyright Office, the members of the undersigned organizations, and other important copyright stakeholders.

February 26, 2016: US Copyright Office Section 512 Study Survey

In February and March 2016 the US Copyright Office was conducting a study about the efficacy of the DMCA Takedown Notice procedure. ASMP and the following group of associations were working together to conduct a survey of image rights holders and licensing professionals to gather information for the Copyright Office study:

January 28, 2016: IPTF releases White Paper , CA reacts

On January 28, 2016 Internet Policy Task Force (IPTF) of the U.S. Patent and Trademark Office ( USPTO ) released a White Paper on Remixes, First Sale, and Statutory Damages. The paper, subtitled "Copyright Policy, Creativity, and Innovation in the Digital Economy", looks in detail at the legal framework for remixes, first sale in the digital environment, and statutory damages for infringements while offering a number of legislative and policy recommendations. The paper reflected two years of work by this task force within the Department of Commerce that includes the U.S. Patent and Trademark Office (USPTO).

On the same day, the Copyright Alliance (CA) reacted with a statement by Keith Kupferschmid, CA Executive Director and a summary of the newly released document; ASMP Executive Director Tom Kennedy participated in a CA meeting where a briefing was presented on the IPTF White Paper.

November 18, 2015: ASMP Update on Copyright Reform

On November 18, ASMP Executive Director Tom Kennedy presented 21st Century Copyright & You, an important update on Copyright Reform as part of ASMP's Business as unUsual webinar series:

No legislative act has a greater impact on your ability to earn a living as a creator than copyright. For the first time since 1976, Congress and the Copyright Office are engaged in serious talks to significantly modernize the Copyright Act and the Copyright Office itself. Global corporations with deep pockets have already aligned against the interests of independent creators. Only our numbers and a strong unified voice can counter their lobbyists and their messaging. In this on demand webinar, ASMP Executive Director Tom Kennedy gives you a solid understanding of what’s at play and how you can contribute to the process to ensure that you’ll be able to earn a living in this new era of copyright.

November 10,2015: ASMP Hosts Meeting with House Judiciary Committee Members

On November 10, 2015, ASMP organized and hosted a private meeting in Los Angeles bringing Members of the United States House of Representatives Judiciary Committee and their staff together with photographers and photo/visual editors representing ASMP, APA, DMLA and NPPA to discuss the marketplace realities facing professional photographers as small business owners and representatives of a creative class.

Modernization of the Copyright Office and the need to simplify copyright registration.

The creation of a Copyright Small Claims Court as a remedy for infringements that cannot realistically be pursued within the Federal court system.

The proliferation of infringement fostered by digital distribution systems and the commercial harm caused by such rampant infringements.

The challenges presented by “click-bait” sites whose entire business models are built around intentional infringement.

"I was proud to organize and host this meeting, and am deeply appreciative of the time and attention we received from House Members and their staff," says ASMP Executive Director Tom Kennedy, "They were fully engaged, asked great questions, and really got a sense of our passion and commitment to do work that matters to clients and the public. Their interactions with our photographers made it clear that they want to shape legislative solutions that do not leave individual creators out of the picture."

Several staff members have since reached out to ASMP to express the value they found in hearing the first-hand accounts shared by the photographers in attendance. Kennedy further notes, "I am excited about continuing to work with them, and other visual groups representing independent creators, to build consensus for the best copyright remedies to the major marketplace challenges we face today."

Call to Action: Send ASMP Your Infringement Stories

House Judiciary Committee Chair Bob Goodlatte has communicated to ASMP that he is receptive to hearing first-hand accounts of egregious infringements involving corporations, non-profits or governmental bodies as well as examples of works that have been devalued by click-bait sites. Please only send accounts that can be backed by legitimate proof of the claims such as screen grabs or photographs documenting the unauthorized usage.

Submit your stories to copyrightreform@asmp.org. Please also help us spread the word about this important opportunity to communicate the market realities professional photographers face every day.

October 27, 2015: Copyright Office releases Strategic Plan

Register of Copyrights Maria Pallante has released a public draft of the Copyright Office's Strategic Plan, settig forth the Office's performance objectives for the next 5 years. It will remain in draft form for 30 days to permit public feedback, and will take effect on December 1, 2015.

October 20, 2015: Separating Fact from Fiction launched

ASMP is pleased to announce the release of Separating Fact from Fiction: What Every Visual Artist Should Know About the Copyright Review Process, a series of 6 recordings covering current Copyright Reform discussions. Developed jointly by the ASMP, Digital Media Licensing Group (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), Professional Photographers of America (PPA) and American Photographic Artists (APA), the series features June Besek, Executive Director of the Kernochan Center for Law, Media and the Arts at Columbia Law School and intellectual property attorney Nancy Wolff of Cowan DeBaets Abrahams & Sheppard LLP. Professional photographer and past ASMP President, Richard Kelly, serves as moderator.

The series includes the following programs:

Copyright Basics : covers current copyright practices including the purpose of copyright, the effect and benefits of registering your copyrights and recommendations for artists wishing to protect their work. (10 minutes)

Copyright Reform: outlines what artists need to know about recent Congressional hearings about Copyright Reform including their purpose, what they are reviewing, who has been invited to participate, the role of authors and artists in these discussions and the likely results of these hearings. (9 minutes)

Orphan Works: provides everything artists need to know about recent studies and reports released by the Copyright Office regarding Orphan Works, a phrase used to describe copyrighted works where the copyright owner cannot easily be identified or located. (17 minutes)

Mass Digitization: explains the Copyright Office's proposed pilot program that would allow the temporary creation of a Collective Management Organization that could collect payments from entities engaging in mass digitization projects where millions of works are scanned (such as the Google Books project), with the sole purpose of distributing those revenues to rights-holders. (10 minutes)

Copyright Small Claims Court: covers recent discussions and reports regarding the possible creation of a dedicated Copyright Small Claims Court that would allow artists the option to pursue compensation for smaller infringements without filing suit in Federal Court. (11 minutes)

21st Century Copyright & You: addresses what individual artists can do to support favorable copyright reform both as members of associations and through direct interaction with Congress and the Copyright Office. (11 minutes)

The reliance of online services like Photobucket on the safe harbor in section 512 of the Digital Millennium Copyright Act to shield themselves from liability for acts that go well beyond the text of the provision such as collecting advertising revenues off of aggregations of "free" photographs - the majority of which are infringements - as well as their creation of profit sharing relationships where they share in revenues generated from printing products - posters, t-shirts, coffee mugs, etc. - featuring works from their aggregated collection without getting permission from (or compensating) the rights holder.

A recent shift in how courts are interpreting the standard of originality as it's applied to photographs, to the detriment of photographers whose works are imitated. Recent cases, such as Rentmeester v. Nike, illustrate a disturbing trend that, if affirmed, could result in an environment where anyone can substantially imitate even the most carefully staged photograph with impunity.

Taken together, these two issues create substantial barriers to photographers successfully pursuing infringements of their creative works; barriers that improved group registration procedures combined with a small claims court could help remedy.

July 23, 2015: ASMP Responds to April 24 Notice of Inquiry

ASMP has submitted our response to the April 24, 2015 U.S. Copyright Office Notice of Inquiry, which set out to review “how certain visual works, particularly photographs, graphic artworks, and illustrations are monetized, enforced and registered under the Copyright Act.”

Our response focused on several critical areas including:

The need for effective remedies, such as a specialized Copyright Small Claims Court, to counterbalance the rampant infringement of photographic works that involve sums too small to justify litigation in federal court.

Flaws in DMCA take-down procedures that protect infringers while placing an undue burden on rightsholders.

The aggregation of visual content by technology companies that amass venture funding and advertising revenues without returning any share to the visual creators whose work they are capitalizing on.

The reliance on expanded interpretations of the Fair Use doctrine as justification for widespread appropriation and misuse of copyrighted works.

Extensive client, event and venue demands for Work Made For Hire and Copyright Transfer as contractual workarounds to bypass the intent of Copyright and traditional licensing models.

Challenges posed by the registration process including the confusing rules surrounding the separation of and distinction between published and unpublished works and the lack of an effective API that would allow third party software developers to create drag and drop registration from within photo editing applications.

A special thank you to those who responded to our Call to Action. Your stories helped us identify and articulate key issues based on your real-world experience.

Our deepest thanks to our members for providing the financial support that allows us to engage effectively and ensure your concerns are heard by key legislative decision-makers. If you are not currently a member of ASMP, please help us support our industry by joining or reinstating your membership today. Visit www.asmp.org/join for details.

June 4, 2015: CODE Act Proposed

U.S. Representatives Tom Marino and Judy Chu distributed a discussion draft of a bill that would completely restructure and modernize the U.S. Copyright Office. The proposed legislation (Copyright Office for the Digital Economy Act or “CODE" Act) follows on the heels of a year-long series of hearings in the House Judiciary Committee on potential revisions to U.S. copyright law, specifically including major changes to the Copyright Office. You can see the discussion draft of the CODE Act here.

The proposed legislation closely tracks the desired changes outlined by Register of Copyrights, Maria Pallante, in her February 26, 2015 and April 29, 2015 testimony before the House Judiciary Committee. Among other actions, this proposed legislation:

Establishes the Copyright Office as an independent agency.

Provides that the President will appoint a Director for one 10 year term upon the advice of a bipartisan, bicameral commission, and with consent of the Senate.

Transfers administrative functions and legal duties from the Library to the Copyright Office.

Allows the Copyright Office to deliver any and all communications directly to the legislative branch, free of executive review.

Would allow the Copyright Office to physically move out of the Library and into a new federal building.

In ASMP’s view, these changes are much needed in order to bring the Copyright Office into the digital environment and would benefit everyone involved with copyrights: creators, publishers, users and consumers, alike. We applaud the vision and insight of Representatives Marino and Chu in bringing this proposal forward. We thank them and the other members of the Committee for their efforts on behalf of ASMP’s members and the other members of the copyright community.

June 26, 2015: CODE Act Update

ASMP Executive Director Tom Kennedy has formally communicated ASMP's support for the proposed CODE Act in a series of letters to key players including the Register of Copyrights and members of Congress. Click here to review the letter sent to Ranking Member John Conyers, which is representative of the messages sent.

May 29, 2015: Richard Prince, Fair Use & Copyright Reform

The response to Richard Prince’s appropriated Instagram Photos shown at the Gagosian Gallery and Frieze Art Fair in New York has been covered extensively in both traditional and social media recently. You’ll find articles summarizing the issues at PetaPixel, PDN, and f-Stoppers.

While it’s easy to scorn Richard Prince’s appropriation of images from Instagram as an act of blatant theft, the bigger question – namely the failure of our legal and legislative system to provide an effective and affordable system of protections for artists – must not be ignored.

For the first time in nearly 40 years, Congress and the Copyright Office are actively discussing Copyright Reform. The ASMP is working on a comprehensive response to the Copyright Office’s recent Notice of Inquiry on issues relating to the monetization, registration and protection of photographic and other imagery. We urge all photographers to contribute your stories and experiences to this effort.

Read the section below for a detailed explanation of the NOI and what ASMP is doing to ensure photographers’ concerns are heard. Or jump straight to our Call to Action for all photographers and send us your story today.

April 24, 2015: Copyright Office issues Notice of Inquiry

Copyright Reform - First Steps

It has been obvious for quite some time that the Copyright Act of 1976 does not adequately address many issues raised in a digital era that was only in its infancy when the law was enacted in 1976. The move towards modernization of the Act has been discussed for years, but it really started to pick up momentum in March 2013 when the Register of Copyrights, Maria Pallante, delivered a lecture at Columbia Law School and then published a paper titled "The Next Great Copyright Act." She quickly followed that with a call for Congress to take action.

Congress, in turn, acted quickly when House Judiciary Committee Chair Bob Goodlatte (R-VA) announced a comprehensive review of Copyright Law a month later. On July 25, 2013, the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property held a hearing on Innovation in America: The Role of Copyrights, during which ASMP testified regarding the unique challenges faced by professional photographers and critical role copyright protection plays in our industry. That testimony is available here.

ASMP & Coalition Efforts

"When it comes to legislation, the issues are too important and the opposition too powerful for you to win as a divided community...If the industry is not united it will not be well represented or able to participate adequately in the discussions going on in the halls of Congress. These discussions are going to happen with or without you."

~ Representative Jerrold Nadler, February 6, 2015

Representative Nadler was speaking of the music industry when he uttered these words but they hold equally true for photographers. Representatives of both Congress and the Copyright Office have made it abundantly clear to ASMP that the needs of independent creators including photographers, illustrators and graphic artists can only be considered if we, as a group, clearly and consistently articulate our concerns and desired outcomes. This is especially important when you consider the degree of influence and affluence that the forces aligned against the interests of independent creators bring to bear on these issues. Lobbyists working for Google alone have access to virtually unlimited funding and average one meeting with the White House per week.

The Copyright Office has a long history of being accessible to the constituency that it serves, including the public at large. The current administration has been particularly open and responsive to the copyright community, and ASMP has frequently taken advantage of this by meeting regularly with the Register and her staff to discuss the problems facing professional photographers under the current Act and copyright systems but, as Representative Nadler notes, the industry must come together to be heard.

To meet this challenge, ASMP has not only continued its own advocacy on behalf of professional photographers, but we have also partnered with most of the other major organizations representing photographers and other creators of visual artworks to jointly advocate for the rights of independent artists to both Congress and the Copyright Office.This partnership of creator organizations – in which ASMP has played an active role – allows us to present a more unified voice in seeking change. And, by joining forces, we are better able to counter the financial reach of opposing forces by collectively representing a critical mass of individual creators.

Through the efforts of this coalition, the Copyright Office has recognized that photographers, illustrators and other individual creators of visual works face unique challenges under the current copyright system. During a November 2014 meeting between representatives from ASMP and other coalition members, Maria Pallante, and her senior staff, it became clear that the best way to help our community was for the Copyright Office to begin a formal study of the difficulties facing our industry. To that end the Copyright Office issued a Notice of Inquiry (NOI) on April 24, 2015.

Notice of Inquiry, Docket No 2015-01

The Notice of Inquiry issued by the U.S. Copyright Office on April 24, 2015 provides a formal mechanism for the Copyright Office to review "how certain visual works, particularly photographs, graphic artworks, and illustrations are monetized, enforced and registered under the Copyright Act." This NOI is particularly important as it deals specifically with the issues that are most important to still and motion photographers.

Just 3 pages long, the NOI provides a summary of issues including citations from comments and testimony provided by ASMP and other coalition members in response to a 2012 Notice of Inquiry on Orphan Works and Mass Digitization and a 2012 Hearing on Small Copyright Claims. The Notice of Inquiry then outlines 5 specific questions that the Office seeks comments on:

What are the most significant challenges related to monetizing and/or licensing photographs, graphic artworks, and/or illustrations?

What are the most significant enforcement challenges for photographers, graphic artists, and/or illustrators?

What are the most significant registration challenges for photographers, graphic artists, and/or illustrators?

What are the most significant challenges or frustrations for those who wish to make legal use of photographs, graphic art works, and/or illustrations?

What other issues or challenges should the Office be aware of regarding photographs, graphic artworks, and/or illustrations under the Copyright Act?

The responses gathered will presumably help shape a report to Congress that will include the Copyright Office’s conclusions and recommendations. It may even include specific recommendations for legislative language to be enacted.

ASMP Call to Action to Photographers

ASMP seeks relevant comments, experiences and stories to consider as we and coalition members draft a comprehensive response to the questions raised in the April 24th Notice of Inquiry. Please send your thoughts to copyrightreform@asmp.org no later than Friday, July 17, 2015.

ASMP’s response to the NOI will be published on this page after it has been submitted to the Copyright Office on July 23, 2015.

Related Links and Additional Resources

The following resources provide deeper background information on key copyright related issues including Fair Use, Orphan Works and Copyright Reform.

Fair Use:

Fair Use Case Index On April 28, 2015 the Copyright Office launched this searchable database containing summaries of major fair use decisions to help the public gain a better understanding how the Federal Courts have applied the fair use doctrine to particular categories of works or types of use.

Understanding Fair Use In this free recorded webinar, the legal counsels for ASMP and CCC (Copyright Clearance Center) provide an in-depth explanation of how the Fair Use Doctrine is applied in the United States, including the factors considered when determining if a specific instance qualifies as a fair use, case studies showing how the courts interpret this doctrine, and common misunderstandings of what qualifies as fair use.

The Expansion of Fair Use In recent years, the Fair Use Doctrine has been used to successfully defend an ever broadening array of unauthorized uses. In this recorded webinar, Richard Kelly and IP attorney Nancy Wolff examine the creator's perspective on this critical and controversial area of Copyright law. Free to ASMP members, non-members can access for $4.99.

Orphan Works:

Policy Study on Orphan Works Provides links to a 2005-2006 Study, testimony from congressional hearings held in 2006 and 2008, proposed legislation from 2006 and 2008, transcripts and recordings from public roundtables held in 2014, public comments from 2013 and 2014 and the original Notices of Inquiry from 2012 and 2014. Although there is not currently an Orphan Works bill on the table, we expect this issue to be raised again in the future.

The Register’s Perspective on Copyright Review Webcasts and written transcripts from an April 29, 2015 Congressional hearing during which Maria Pallante provided a comprehensive review of recent Copyright Office activities including studies and reports on Copyright Reform and the modernization of the Copyright Office.

Making Available Policy Study In 2014, The Copyright Office undertook a study to assess the state of U.S. law recognizing and protecting "making available" and "communication to the public" rights for copyright holders, which relate to the display and downloading of works over the internet.

Small Claims Study Provides the 2013 report plus supporting transcripts, comments, notices of inquiry and related materials pertaining to the possible development of a system to resolve small copyright claim disputes outside of Federal court.

Legal Issues in Mass Digitization A 2011 preliminary analysis and discussion document published by the Copyright Office to address the issues raised by the intersection between copyright law and the mass digitization of books.